Two weeks ago I blogged on the unique situation facing the Fourth Circuit in the high-profile Dylann Roof case after all of the judges of the Court recused themselves from hearing his appeal.  Since that post, there have been some interesting developments as to Roof’s request that an out-of-circuit panel be designated to rule on Roof’s petition for en banc rehearing of the Fourth Circuit opinion (from an out-of-circuit panel designated pursuant to 28 U.S.C. § 291(a)) affirming Roof’s conviction and death sentence.

First, I had implied in my prior post that the fact that a response to the petition had been requested suggested that someone was going to review the request for rehearing en banc.  However, Roof’s singular petition was for both panel rehearing as well as rehearing en banc, and the request for a response was limited to the petition for panel rehearing (presumably requested by one or more of the out-of-circuit judges that had comprised the panel).  The petition for panel rehearing was denied by the out-of-circuit panel the day after the government’s response to the petition was received.

Second, the statutes discussed in that post seemingly allowed for the designation of an out-of-circuit en banc panel.  In fact, Roof had made a motion for exactly that to happen so that his petition for rehearing en banc could be reviewed.  However, three days after Roof’s petition for panel rehearing had been denied, the Fourth Circuit Clerk (at the direction of Chief Judge Gregory) issued an Order denying Roof’s request for designation of an en banc court pursuant to 28 U.S.C. § 291(a) or § 292(a) or (d).  The Order stated that designating the requested en banc panel would be “unprecedented,” and that “under the wording of 28 U.S.C. § 46(c) and the Supreme Court’s holding in Moody v. Albemarle Paper Co., 417 U.S. 622, 94 S.Ct. 2513, 41 L.Ed.2d 358 (1974), only judges of the Circuit who are in regular active service may make the determination to rehear a case en banc,” quoting United States v. Nixon, 827 F.2d 1019, 1021 (5th Cir. 1987) (my emphasis added).  Moody was a case in which the Supreme Court determined that only the active judges of a Circuit Court could hear an en banc request, and that senior judges of the Circuit could not participate in an en banc court unless they had been a member of the panel that had issued the opinion at issue.  Perhaps more importantly for this issue, however, the Supreme Court also held in Moody that the statute creating the mechanism for rehearing did not create a right to an en banc hearing, nor a right “to compel the court to vote on the question of hearing or rehearing.”  Thus, while it appears that there could still be an argument to be made that the plain language of 28 U.S.C. § 291(a) or § 292(a) or (d) might technically allow for the designation of an out-of-circuit en banc panel, the Fourth Circuit clearly had no obligation to seek out an en banc panel and in its discretion chose not to.

The Order further stated that designation of a visiting judge under these circumstances would be “an inappropriate procedure, unrelated to providing a quorum for the en banc court of a circuit.”  quoting Comer v. Murphy Oil USA, 607 F.3d 1049, 1054 (5th Cir. 2010).  Having denied the request for the designation of an en banc panel, the Court then denied the petition for en banc rehearing “due to the lack of a quorum for en banc review.”

In response, Roof’s attorneys have now filed a motion for reconsideration of the Fourth Circuit’s prior recusal of all of the Court’s judges.  (Of course, it was Roof himself who made the original request for the entire Court’s recusal.)  In support of this motion, Roof’s attorneys made a number of arguments, including…you guessed it–that the Rule of Necessity should be invoked.  Roof’s attorneys contend that without invocation of that Rule in order to allow the recused judges (except for Judge Richardson, who they argue must remain recused) to participate in review of the petition for en banc review, Roof will be deprived “of a critical level of appellate review at which litigants ordinarily raise intracircuit conflicts on issues of law. Because intracircuit conflicts are not a basis for certiorari in the Supreme Court, Sup. Ct. R. 10, precluding Roof from en banc consideration would deprive him of all opportunity to argue this basis for the opinion’s modification.”

It would seem that the argument for the Rule of Necessity advanced by Roof in this motion for reconsideration has already been foreclosed by the Supreme Court’s holding in Moody.  The Rule of Necessity is intended to allow an otherwise recused or disqualified jurist to hear a case when the litigant would otherwise be deprived of a right to have the case heard.  With the Supreme Court having already announced in Moody that no such right to rehearing exists, the “necessity” part of the Rule of Necessity appears lacking.

As it had with the request for the designation of the out-of-circuit panel for en banc rehearing, the government took no position on this motion for recusal reconsideration.

Stay tuned for any further developments on this issue.

–Patrick Kane